THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011- 024
PARTIES
A Hairdresser
(represented by Donal Taaffe & Co., Solicitors)
-v-
A Wig Company
File Reference: EE/2008/269
Date of Issue: 11/02 2011
Decision DEC-E2011-024
A Hairdresser
(represented by Donal Taaffe & Co., Solicitors)
-v-
A Wig Company
Keywords
Employment Equality Acts 1998-2008, Section 6(1) - less favourable treatment, Section 6(2)(a) and (g) - gender & disability, Section 8 - discrimination in relation to conditions of employment and dismissal.
1. DISPUTE
This dispute involves a claim by a complainant that she was discriminated against by the above named respondent on the gender and disability grounds, in terms of Section 6 of the Employment Equality Acts 1998-2008 and contrary to section 8 that Act in relation to her dismissal
2. BACKGROUND
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 - 2008 to the Equality Tribunal on the 28th April 2008 alleging that the respondent discriminated against her on the gender and disability ground when she was dismissed from her employment. In accordance with his powers under section 75 of the Employment Equality Act 1998 as amended the Director delegated the case on the 6th October, 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 15th December 2008 and the respondent on the 11th February 2009. A hearing on the complaint was held on the 28th January 2011.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant is a qualified hairdresser, was employed by the respondent on the 4th August 2007 as a trainee wig fitter. The company specialises in fitting wigs for customers undergoing treatment for cancer and customers who suffer hair loss due to alopecia. The complainant said that she had no experience doing this type of work and she explained this at the interview. She said that her training consisted of observing the respondent doing fittings for clients. The complainant stated that she suffers from diabetes and takes insulin injections 4 times per day including at work and the respondent was aware of her condition. Some six weeks into her employment with the respondent, the complainant learned that she was pregnant and because of her diabetic condition she was admitted to hospital to regulate her sugar levels and medication.
3.2 The complainant returned to work on the 24th of September and informed the respondent of her pregnancy, the respondent herself was also pregnant. A couple of days later the respondent asked the complainant when the baby was due. The complainant told her she was due at the end of May 2008. The respondent said that the complainant's maternity leave would overlap with her own. The respondent asked the complainant if she expected to be absent from work because of her pregnancy and diabetes. She also told her that she had spoken to her own doctor about the complainant's pregnancy and diabetes and the doctor expressed a view that the complainant could deliver her baby early because of the diabetes. The respondent told her that she would have to employ another person to cover the overlap in both their maternity leaves.
3.3 In early October 2008, the complainant suffered a miscarriage and returned to work on the 11th of October. She said that she returned early despite being told by her doctor to take time off. On the 22nd of October she had a meeting with the respondent. She said that she was asked about becoming pregnant again and she told her that she had not planned to do so for about a year. The complainant said that the respondent told her that there were 2 complaints from clients about her work. The complaints related to issues about her confidence and her knowledge of the hairpieces. The respondent asked her to try and brush up on her confidence for the next week. The respondent also warned her that if she got more complaints and if her confidence did not improve she would have to let her go. The complainant said that the respondent told her that she would worry about the business if she left it in the complainant's hands while she was on maternity leave.
3.4 The complainant said these complaints were never brought to her attention until the meeting on the 22nd of October. On occasions clients got angry during a consultation, but she was of the view that the anger was not directed at her but at the difficult situation they found themselves in. She accepts that on one occasion she cut a wig too short, but this happened because the client kept asking her to cut it shorter. The complainant said that she was dismissed one week after the warning. During that week she was sent out to the hospital to do fittings and there were no complaints about these fittings. She believes that if there was a problem with the quality of her work that she would not be sent on her own by the respondent to fit clients in hospital. She believes that the training provided was inadequate and it was only in the last week of her employment that she received a training manual. She submits that she was dismissed because the respondent feared that she would become pregnant again and this would cause hassle for her.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent denies that the complainant was discriminated against either on the disability or gender ground. The complainant was employed as a trainee wig fitter with a view to replacing the respondent while she was on maternity leave and continuing in the job on the respondent's return. She had no other employee trained to fit wigs. The respondent stated that there is no apprenticeship or course in wig fitting, it is all on the job training. The complainant spent the first seven weeks of her employment training and observing her fitting wigs. The job involves fitting wigs for very vulnerable people who are undergoing chemotherapy following a diagnosis of cancer and they need very specific advice about the products and the services provided. She also has a number of alopecia clients. The job involves having a consultation with the client to give them information about their hair loss, helping them select the right fitting wig, explaining the different wigs styles, colours etc and cutting the wig if necessary. She said most of her consultations are referrals and recommendations from hospitals and the medical profession who are dealing with the particular client's illness. The main qualities required for the job are good communication skills, being able to relate to the customers to put them at their ease and to give them confidence. The complainant was given 7 weeks on the job training in all aspects of the work including fitting clients under supervision.
4.2 On the 24th of September 2008 the complainant started fitting clients unsupervised. The respondent said that the complainant was extremely nervous and unsure of herself and did not communicate well when she was dealing with clients. She said that she organised extra training such as a cutting tutorial, compiled extra training material and created a database to make it easier to learn about the different wigs. She also and organised her mother to act as a model so the complainant could practice her skills and communicate with and visualise what it is like for a client to come in for a fitting having no prior knowledge of wigs. The respondent stated that after 3 months on the job, 7 of which were exclusively devoted to training, she realised that no amount of training was going to bring the complainant up to the standard required to be a competent wig fitter. She said that she got complaints from clients and they did not have confidence in her and felt she did not know what she was doing. She said that she was losing clients and lost one particular alopecia client who was with the company for years.
4.3 The complainant did 72 fittings, 20 resulted in no sale. On average the salon normally had a conversion rate from consultation to sales of 95%. She said that out of the 52 sales made by the complainant, she had 14 complaints about the sales ranging from badly cut wigs to ill fitting wigs. She said that the complainant was well aware that she (the respondent) had to replace wigs for clients and also that she had to send the wigs out for cutting to a hairdresser despite the fact the complainant was a qualified hairdresser and had received training in cutting wigs from a qualified hairdresser. The respondent stated that the decline in sales and number of complainants she received was causing her concern. On the 22nd of October she called the complainant to a meeting and she pointed out to her that there was a decline in sales and she discussed in particular a client who claimed that she was traumatised after a consultation with the complainant. She said that she brought all the issues to her attention and asked her to make a concerted effort to improve over the next week. The respondent said that she wanted to retain the complainant because she needed her to cover her maternity leave which was due to start in December.
4.4 During the following week the complainant did some hospital consultations and the respondent said that she received no complaints. However on Saturday she observed the complainant was not communicating properly with a client and was not giving her the right advice about the type of wig most suitable for her needs and she had to intervene in the consultation. The complainant also spent about 45 minutes in a consultation with another client before realising that she need a larger wig and the respondent said she had to intervene in the consultation after the complainant sought her advice. The respondent stated she made up her mind to dismiss the complainant at that time because she had not improved sufficiently. She believed she was not competent to carry out the work and she could not leave her in charge while she was on maternity leave otherwise her business would not survive. The respondent said that the dismissal of the complainant had no connection with her diabetes, her pregnancy or her miscarriage. When she learned that the complainant was pregnant she said that she needed to find out when the baby was due because she wanted to ensure that if their maternity dates overlapped that she had somebody else trained to take over and this was the reason she raised the matter with the complainant. She said that she had every sympathy for the complainant when she suffered a miscarriage and denied that she ever asked her about her intentions about getting pregnant again. She said that she was pregnant herself and would and would never ask such an insensitive question particularly given the circumstances. The complainant was dismissed for incompetence and no amount of training would bring her up to the standard required to take over from her during her maternity leave.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me is whether or not the respondent discriminated against the complainant on the gender or disability ground contrary to Section 8(6)(c) the Employment Equality Acts, 1998 - 2008 as amended. In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.
5.2 Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, a prima facie case, that is, facts from which it can be established that she was discriminated in relation to her dismissal. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.
5.3 I am now going to consider the evidence, in the light of the above, and determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts 1998 and 2004 provides:
"..... discrimination shall be taken to occur -
a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the 'discriminatory grounds')"
Section 6(2)(h) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act
referred to as ''the gender ground''),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),
5.4 The complainant contends that she was dismissed for reasons connected with her disability and pregnancy. The complainant denies that she was incompetent and states that she was not properly trained. It was submitted that it was only after her illness and miscarriage that any shortcomings in her work was brought to her attention and she was dismissed one week later. It was also submitted that the respondent had already made up her mind to replace her because the complainant might become pregnant again and she could not rely on her being there for the duration of the respondent's maternity leave. The respondent states that she dismissed the complainant, after giving her a warning and a chance to improve, because she was incompetent. She further submitted that the dismissal had no connection whatsoever with the complainant's diabetes or pregnancy.
5.5 Having examined the evidence presented by the complainant, I have concluded that the complainant has not established that she was dismissed for reasons connected with her disability or gender. I note that the complainant submits that she was asked questions about becoming pregnant in the future. Having listened to the evidence, I have concluded that this question was not raised by the respondent. I note that there were issues with her performance and that they were notified to her. Likewise, I note that the respondent was due to go on maternity leave in December and had trained the complainant as her replacement. I am of the opinion that if the complainant was competent, the respondent would not have dismissed her so close to her own maternity leave, and given that she would have to train another person to run the business in her absence. I have concluded therefore, that the complainant was dismissed for reasons connected with her performance in the job. Therefore, I am not satisfied that the complainant has established that she was treated less favourably on the disability or gender ground than another person with a different disability or a person without a disability or a person of a different gender was treated or would have been treated in similar circumstances. Therefore, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal.
6.1 Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the respondent did not discriminate against the complainant on the gender or disability grounds pursuant to sections 6(1)and 6(2)(a) and (g) of the Acts and contrary to section 8(6) of the Acts in respect of her dismissal
______________________________
Marian Duffy
Equality Officer
10th February 2011